Businesses Must Determine Whether the Pay-or-Play Provisions in the Affordable Care Act Apply

Tuesday, November 27, 2012

If you own a business, the following are important items regarding the Affordable Care Act, sometimes referred to as Obamacare, you need to know:

By March 1, 2013, employers must notify employees of the health insurance exchanges, including the employee’s right to purchase health insurance through a state insurance exchange.

In 2014, pursuant to an Internal Revenue Code provision, employers with 50 or more full-time equivalent employees will be subject to the “employer shared responsibility” standards. Employers who anticipate having 50 or more full-time equivalent employees in 2014 need to understand the pay-or-play requirements so they can decide if they want to offer health insurance and, if so, what the insurance covers.

For employers with 50 or more full-time equivalent employees in 2014, penalties apply if no health insurance is offered, or health insurance is offered but it does not have minimum essential health benefit coverage, and an employee obtains subsidized health insurance coverage from the state insurance exchanges that are supposed to be in place by 2014.

Interestingly, in 2014, penalties can apply even if an employer with 50 or more full-time equivalent employees offers health insurance which has minimum essential health benefit coverage. This occurs if such minimal essential health benefit coverage is not affordable or does not offer minimum value, and one or more employees obtains subsidized health insurance coverage from the state insurance exchanges that are supposed to be in place by 2014. Coverage is considered affordable if it costs an employee less than 9.5 percent of the employee’s annual household income. Generally, an employer’s group health plan will be considered to provide minimum value if the employer pays on average at least 60 percent of health care expenses while the employee pays on average 40 percent of health care expenses (through deductibles and copayments).

In addition to the potential penalties under the pay or play provisions, the IRS Code includes a tax on any failure of a group plan to meet the code’s requirements for group health plans. For example, if an employer has a group health plan that fails to provide preventive health care services when a plan requires it, then the amount of the tax is $100 per employee for each day in the non-compliance period. This can be a very large tax.

Kathy J. Tayon practices in the areas of transactional, regulatory and operational based business and health care law. Her transactional work includes negotiating, documenting and closing a wide array of transactions including purchases, sales, reorganizations and mergers of physician practices, ambulatory surgery centers, assisted living facilities, home health agencies and other health care entities. Her regulatory work includes representing individuals and health care entities in determining compliance with Federal and State anti-kickback and self-referral laws and with respect to...

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